Friday, December 8, 2017

Interesting Case re: mediation out of Amarillo Texas

Highsmith v. Highsmith, 2017 Tex. App. LEXIS 9213 (Texas. App. - Amarillo on September 28, 2017) (Cause No. 07-15-000407-CV)

Husband and Wife were contemplating divorce. They entered into a pre-suit Mediated Settlement Agreement. Husband eventually filed for divorce. Wife signed a Waiver of Service but did NOT waiver notice of hearings). BUT then Wife filed an Answer with the Court. Husband appeared without any notice to Wife and obtained approval of the settlement agreement and finalized divorce.

After divorce was granted, Wife hired an attorney. Trial court denied her motion to set aside the rendition and revoke the settlement agreement.

Court of Appeals thought the agreement did not comply with Family Code governing mediated settlement agreements since it was done PRIOR to the lawsuit being filed. BUT the Court felt the MSA was enforceable as a contract but then Wife could object using contract defenses and try to revoke it.

Court of Appeals held that Wife did not waive notice of hearings and filed an original Answer.
Wife had a fundamental right to receive notice of all hearings.

So Court of Appeals reversed and remanded for a new trial.

Motto of this finding -

Though not in Houston (it was Amarillo) it addresses an issue that I have been concerned about for quite some time.

If a couple comes to mediate BEFORE filing a lawsuit then either party can try to later revoke it for a variety of reasons.

So...file lawsuit then mediate. That would make it much harder to try to wiggle out of a mediated settlement agreement.

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